Citation Nr: 1722652
Decision Date: 06/19/17 Archive Date: 06/29/17
DOCKET NO. 11-32 113 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right upper extremity prior to March 15, 2010.
2. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left upper extremity prior to March 15, 2010.
3. Entitlement to total disability rating based upon individual unemployability due to service-connected disability (TDIU).
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. Vang, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1982 to April 1988.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.
These matters were previously before the Board. In June 2014, the Board remanded a cervical spine claim that is currently no longer on appeal. On remand, the Veteran's radiculopathy of the upper extremities were examined ancillary to the cervical spine appeal, observed to have worsened in severity, and, consequently, the Agency of Original Jurisdiction (AOJ) assigned increased ratings in October 2014. The case was returned to the Board in May 2015. The Board determined that the radiculopathy ratings were ancillary to the cervical spine appeal and, as such, were considered to ensure that the Veteran would receive the maximum rating allowed. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Harris v. Derwinski, 1 Vet. App. 180 (1991). In pertinent part, the Board denied an increased rating for radiculopathy of both upper extremities in excess of 10 percent prior to March 15, 2010. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a June 2016 memorandum decision, the Court reversed and vacated the May 2015 Board decision with respect to the issues of an increased evaluation for radiculopathy of both upper extremities in excess of 10 percent for the period prior to March 15, 2010. The case was then returned to the Board.
Additionally, in the May 2015 decision, the Board found that evidence of unemployability was submitted during the course of the appeal, and a claim for entitlement to TDIU was considered to have been raised by the record as "part and parcel" of the underlying claim for an increased evaluation of radiculopathy of the right and left upper extremities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board subsequently remanded the Veteran's TDIU claim for additional development to include the issuance of a Statement of the Case. Upon review of the
file, additional development was completed by the AOJ and a Statement of the Case was issued. Although a substantive appeal was not subsequently filed in response to such Statement of the Case, given that the TDIU was then, and should be considered now as part and parcel to the increased rating claims then on appeal in the May 2015 Board decision, and in the decision herein, the claim for entitlement to TDIU is properly before the Board.
FINDINGS OF FACT
1. Since March 4, 2009 to March 15, 2010, the Veteran's radiculopathy of the right upper extremity more nearly approximated moderate incomplete paralysis.
2. Since March 4, 2009 to March 15, 2010, the Veteran's radiculopathy of the left upper extremity more nearly approximated moderate incomplete paralysis.
3. Since March 4, 2009, the Veteran has had service-connected disabilities of a common etiology that combine to meet 60 percent: degenerative disc disease of the cervical spine at 30 percent, right upper extremity radiculopathy associated with the cervical spine at 30 percent, and left upper extremity radiculopathy associated with the cervical spine at 20 percent; and from March 15, 2010, the Veteran has service-connected disabilities that result in a combined rating of 80 percent with at least one disability ratable at 40 percent or more: right upper extremity radiculopathy at 40 percent; left upper extremity radiculopathy at 30 percent; degenerative joint disease of the cervical spine at 30 percent; degenerative joint disease of the left knee at 10 percent; and right knee strain at 10 percent.
4. During the entire appeal period, the Veteran has been unable to secure or follow substantially gainful employment due to his service-connected disabilities.
CONCLUSIONS OF LAW
1. The criteria for the assignment of a 30 percent rating, but no higher, for radiculopathy of the right upper extremity have been met from March 4, 2009 to March 15, 2010. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.124a, Diagnostic Code (DC) 8516 (2016).
2. The criteria for the assignment of a 20 percent rating, but no higher, for radiculopathy of the left upper extremity have been met from March 4, 2009 to March 15, 2010. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.124a, DC 8516 (2016).
3. The criteria for a finding of TDIU have been met since March 4, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 4.3, 4.16(a), 4.18 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, with regard to the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).
Duties to Notify and Assist
The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2016).
In a claim for an increased disability rating, VA's duty to notify includes general notice of the type of evidence needed to substantiate the claim, such as evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).
VA has satisfied its duty to notify the Veteran in a letter dated December 2009, which informed the Veteran of the evidence required to support an increased rating claim; his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim; and how VA determines disability ratings and effective dates.
VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016). The Veteran's service treatment records, VA treatment records, and Social Security Administration (SSA) records are in the claims file. The record does not indicate, nor has the Veteran identified, any outstanding medical records. Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied. See 38 C.F.R. § 3.159(c) (2016).
With respect to claims for increased ratings, the duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). Where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2016). The Veteran was afforded multiple VA examinations in during the course of the appeal period, to include examinations dated December 2009 and October 2016. The examinations are thorough and supported by the other evidence of record. The examinations discussed clinical findings; the Veteran's reported history as necessary to rate the disability under the applicable rating criteria; and the impact of the disabilities on his daily living. They are, therefore, adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
As such, the Board finds that VA's duties to notify and assist are met.
Radiculopathy of the Right and Left Upper Extremities
For the period prior to March 15, 2010, the Veteran's right and left upper extremity radiculopathy is rated under 38 C.F.R. § 4.124a, DC 8516 as incomplete paralysis of the ulnar nerve. Under DC 8516, the following ratings apply: a 10 percent rating is warranted for mild incomplete paralysis of both the minor and major extremity; a 20 and 30 percent rating is warranted for moderate incomplete paralysis of the minor and major extremity, respectively. A 30 and 40 percent rating is warranted for severe incomplete paralysis of the minor and major extremity, respectively. A 50 and 60 percent rating is warranted for complete paralysis of the minor and major extremity, respectively, with the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened.
With peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id.
Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id.
Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. Id.
As a preliminary matter, the increased rating claims for radiculopathy of both upper extremities arose as ancillary issues to an increased rating claim for a cervical spine condition that was filed on March 4, 2009. Consequently, and as noted by the May 2015 Board decision, the Board must limit its consideration to only those neurological conditions of the upper extremities suffered by the Veteran from March 2008 to the present. The assignment of effective dates for any grants in this decision should reflect as such.
An April 2009 VA treatment record noted occasional numbness and hypoactive deep tendon reflexes. The Veteran reported occasional weakness of hands, but rarely dropped things. A December 2009 VA information note documented complaints of radicular left arm pain.
In the December 2009 VA examination of a service-connected cervical spine condition, the Veteran reported a history of left-sided neck pain that radiated down the left arm to the small finger. He endorsed mild pain with a searing, cutting sensation that occurred for minutes, anywhere from one to six days a week. He also reported radiating, thudding pain down the left arm to the small finger at times. The examiner noted decreased light touch and decreased sharp sensation in the dorsal ring fingers and dorsal small ringers for each hand. Testing showed decreased muscle strength during bilateral finger abduction and hypoactive reflexes in the bilateral upper extremities in the biceps, triceps, and brachioradialis. The examiner indicated that the Veteran's symptoms, in combination with his service-connected cervical spine condition, resulted in decreased manual dexterity, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, and decreased strength in the right upper extremities.
A February 2010 VA treatment record noted normal deep tendon reflexes and normal strength in the upper extremities.
The Board finds that prior to March 15, 2010, the symptoms of the Veteran's right and left upper extremities more closely approximates moderate incomplete paralysis involving the ulnar nerve due to symptoms such as pain, numbness, decreased strength, and decreased manual dexterity. A higher rating of severe incomplete paralysis is not warranted for either upper extremity because the evidence does not show that symptoms result in moderately or severely affected shoulder, elbow, hand, wrist, and/or finger movements. See 38 C.F.R. § 4.120 (specifying that when rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances). Symptoms generally consisted of mild pain, occasional numbness, and occasional weakness. Deep tendon reflexes were hypoactive in April 2009, but were normal in February 2010. The Board further notes that the Veteran's motor impairments are no more than mild. The December 2009 testing showed that elbow flexion/ extension, wrist flexion/extension, and finger flexors were normal bilaterally with movement against full resistance. Although finger abduction was noted to be mildly abnormal, there was still movement against some resistance, bilaterally. Additionally, as noted in the April 2009 treatment record, the Veteran rarely dropped things.
In sum, the symptoms of the Veteran's upper extremity radiculopathy for the period prior to March 15, 2010 more nearly approximates moderate incomplete paralysis. As such, entitlement to an increased rating of 30 percent for the right upper extremity radiculopathy and 20 percent for the left upper extremity radiculopathy is warranted from March 4, 2009, the date of the claim from which these matters arose, to March 15, 2010. There was no pertinent evidence of increased disability within the year period preceding such date of claim; as such an earlier date than the date of claim is not for application.
The Board has considered whether the Veteran's upper extremity disabilities could receive a higher evaluation under different DCs of 38 C.F.R. § 4.124a. However, the only nerve clearly determined to be affected by the Veteran's upper extremity radiculopathy during the specific appeal period is the ulnar nerve, as noted in the December 2009 examination. As such, DC 8516 is appropriate in this case.
TDIU
Total disability ratings for compensation based upon individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a).
As a preliminary matter, the AOJ undertook development as directed in the May 2015 Board decision by virtue of a letter dated August 2016. Although the Veteran requested additional time to respond to the letter in October 2016, the Veteran ultimately did not submit a completed Application for Increased Compensation Based on Unemployability (VA Form 21-8940). A Statement of the Case was issued in November 2016 and the claim was returned to the Board.
Service connection is currently in effect for: radiculopathy of the right upper extremity at 30 percent from March 4, 2009, per this decision, and 40 percent from March 15, 2010; radiculopathy of the left upper extremity at 20 percent from March 4, 2009, per this decision, and 30 percent from March 15, 2010; degenerative joint disease of the cervical spine from 30 percent; degenerative joint disease of the left knee at 10 percent; and right knee strain at 10 percent.
For the entire period on appeal, the Veteran meets the schedular criteria for TDIU. From March 4, 2009, the Veteran has multiple service-connected disabilities of a common etiology that combine to meet the 60 percent requirement: 30 percent disability rating for degenerative disc disease of the cervical spine, 30 percent disability rating for radiculopathy of the right upper extremity associated with the cervical spine, and 20 percent disability rating for radiculopathy of the left upper extremity associated with the cervical spine. From March 15, 2010, the Veteran is rated 40 percent from March 15, 2010 for radiculopathy of the right upper extremity, with a combined rating of 80 percent.
Turning to the merits of the claim, the Board finds that there is sufficient evidence to adjudicate the claim despite the fact that the Veteran did not submit a completed VA Form 21-8940. As such, the Veteran meets the schedular criteria for TDIU for the entire period on appeal.
Social Security Administration (SSA) records, which were submitted in August 2016, include a questionnaire dated August 2007 wherein the Veteran provided a brief report of his previous employment history. He reported work as a residential counselor/aide, seasonal mail handler, lab clerk, retail clerk, laborer, and trucker. He stated that he stopped working in April 2007 as a residential counselor since his place of employment closed down. He reportedly tried to get unemployment benefits, but was turned down because he refused to work a janitorial job due to emotional and psychological problems.
In April 2010, the Veteran reported to a VA clinician that he was unable to find a job. In a May 2010 VA note, the Veteran expressed his desire to find a job or to move to another place with more jobs.
In an August 2010 private chiropractor record, it was noted that the Veteran was unemployed. He was noted to have received a high school diploma.
During the April 2012 VA examinations, the Veteran reported that he last worked in a factory and stopped working in 2007 after burning his forearms at work. He reported that he subsequently applied for and was granted SSA disability benefits. He also reported that he ran errands for his pastor at a community church. The examiner determined that there were no medical issues that would preclude the Veteran from working in a sedentary environment.
In an August 2012 VA intake assessment, the Veteran noted that his highest level of education was trade school. He reported holding two jobs within the past five years, but did not clarify when he held those jobs. He noted that his current employment status was disabled, and that he was receiving and/or applying for VA and SSA disability benefits. He reported that he was fired once in 1996 due to family problems.
In a December 2013 VA social work note, the Veteran reported that he was not working and shared that his previous job was as an assembler at a plastic company.
In an October 2014 VA examination, the Veteran reported that he had not worked in several years, since June 2008. The Veteran reported that daily activities were significantly affected; specifically, he cannot exercise and requires assistance when putting on socks and shoes. He reported that he was able to drive, do light chores, and do light lifting when shopping. The examiner noted that the Veteran's pain, lack of mobility, and limitations with lifting and overhead work would make gainful physical employment unlikely. The examiner further determined that only part-time sedentary would be likely due to poor pain tolerance and reported coordination difficulties with the hands and fingers. However, the examiner noted that it was unclear whether the hand and finger symptoms were related to his cervical spine condition.
In an October 2016 VA examination, it was noted that that the Veteran's service-connected left knee and right knee impacts his ability to perform occupational tasks because he: is unable to walk over 1/10th of a mile, uses a cane, cannot go up and down stairs without great difficulty, is unable to bend or left, is able to sit for 15 to 20 minutes, but his knees would hurt and his concentration would be affected, has difficulty getting out of a chair, is unable to do any filing, and cannot bend without significant difficulty. The examiner opined that the Veteran would be unable to unable to find gainful employment in either a sedentary or physical setting.
In an October 2016 VA examination of the cervical spine, it was noted that the Veteran is unable to turn his head, is unable to lift, has weakness in hands, drops things at times, could not run multiple machines, could not grasp parts, is not able to observe from an overhead crane, has difficulty sorting papers, has difficulty lifting, has difficulty sitting for over 20 minutes, has difficulty with driving and must use extra mirrors when driving, and is able to answer phones, but has difficulty turning his head. A work history of labor and machine shop work was noted. The examiner noted that the Veteran's neck pain decreases concentration and causes aggravation and irritability. The examiner opined that the Veteran would most likely be unable to maintain a physical job due to his physical limitations or a sedentary job.
In an October 2016 VA examination for peripheral nerve conditions, it was noted that the Veteran's radiculopathy impacts his ability to work in that he has difficulty lifting, carrying items, sorting papers, and typing. The examiner noted that this would affect the Veteran's ability to find gainful employment in a sedentary or physical job.
The Board notes that it is unclear or at least uncertain whether the Veteran is currently unemployed. The record contains conflicting evidence as to the Veteran's last type of employment, whether any employment was substantially gainful, the last date of full-time employment, and why employment was terminated. However, the Veteran has consistently reported that he became unemployed in roughly 2007 or 2008, and has since reported that he is unemployed. Moreover, as recently as October 2014, the Veteran reported that he had not worked in several years, with his last period of employment occurring in 2008. The record additionally shows that the Veteran is in receipt of SSA disability benefits. In light of the above, the Board will afford the Veteran the benefit of the doubt and find that the evidence is in equipoise on whether he is currently unemployed, and whether such unemployment has sustained throughout the period on appeal.
Taking into consideration the Veteran's level of education, work experience, and the functional impairment resulting from his service-connected disabilities, the Board finds that the Veteran is unable to work due to his service-connected disabilities, to include degenerative disc disease of the cervical spine and radiculopathy of the upper extremities. The record indicates that the Veteran possesses limited education, with a high school diploma and some trade school experience. His work history has been sporadic and varied with respect to the type of job and duration of employment.
The Board finds that the weight of the evidence, lay and medical, demonstrates that there are no jobs that the Veteran would be able to secure or maintain based on these circumstances and the other symptoms and the severity thereof during the period of time covered by this claim. The Veteran does not have the educational experience to secure a work position to accommodate his functional limitations. Significantly, multiple VA examiners have opined that the Veteran's service-connected disabilities substantially affect his ability to engage in gainful employment due to functional impairments. VA examiners have pointed to functional impairments such as the inability to lift or carry items, decreased ability to grasp parts, difficulty with sitting and standing for substantial amounts of time, inability to walk longer distances, and difficulty with turning his head to perform certain tasks.
Resolving all doubt in favor of the Veteran, the Board concludes that the disability picture presented by the evidence of record establishes that the Veteran has been unable to obtain or retain substantially gainful employment during the entire period on appeal due to his service-connected disabilities.
The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
ORDER
Entitlement to a disability rating of 30 percent, but no higher, for radiculopathy of the right upper extremity from March 4, 2009 to March 15, 2010 is granted.
Entitlement to a disability rating of 20 percent, but no higher, for radiculopathy of the left upper extremity from March 4, 2009 to March 15, 2010 is granted.
Entitlement to TDIU is granted from March 4, 2009, subject to laws and regulations applicable to the payment of monetary benefits.
______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs